1. Introduction

A civil action could, in the words of Eduardo Couture, be described as ‘civilisation's substitute for vengeance’.

In a civilised country, it is therefore to be expected that:

In South Africa, where post-apartheid the Constitution of the Republic of South Africa, 1996, reigns supreme, that right is guaranteed in the Bill of Rights embodied in the Constitution, Section 34 whereof provides:

As explained in a previous contribution, the word ‘procedure’ means ‘going forward’ and, viewed as such, (a) aims at moving forward the dispute between the parties up to the point of its eventual determination by a court and (b) aims at reflecting the evolution of society and its needs.

The question therefore arises, as far as South Africa is concerned, what is happening to fundamental procedural guarantees in the area of civil justice – is it ‘going forward’, or not?

In answering this question, it is of material importance to keep in mind that 20 years ago South Africa advanced from a system of parliamentary sovereignty to one of constitutional supremacy and that, as such, the way was paved for a rights-based jurisprudence, in which the rules of civil procedure themselves are from time to time subject to constitutional scrutiny and challenge.

In our new dispensation the state is required to ‘respect, protect, promote and fulfil’ the rights in the Bill of Rights which rights, as stated above, include the right of access to courts. In other words, the state is constitutionally required ‘to lead by example’.

What is Happening to Fundamental Procedural Guarantees in South Africa in the Area of Civil Justice?

An analysis of the right of access to courts, as embodied in Section 34 of the Constitution, demonstrates that guaranteed by that right are, inter alia, the principles of: